history of law

Definition of law history:

The law was not known in ancient times, and individuals lived according to their instinct, and the only law applied was the law of power and dominance, however, this does not mean in any case a complete absence of the effects of the law, no matter how ancient the roots of any society are, it was not devoid of systems, and the customs or traditions that governed their behavior and actions and formed the foundations for building their civilizations in accordance with the circumstances prevailing in them. In other words, the current laws were not created from nothing, but rather from continuous development until the present day.

Studying the history of systems requires controlling a set of concepts, which are as follows:

-Positive law: which is concerned with studying current and contemporary legal rules.

-The history of law: which is concerned with the study of law in terms of the developments that legal sources and systems have undergone until they have reached us in their current state;

-The theory of legislation: which is concerned with studying the law in relation to its future in order to improve the situation it is in today, that is, what the law should be.

The study of the history of law deals with four basic stages, such that legal rules began in their early stages in the form of religious rules, then mixed with civil rules, then the latter became independent of them by virtue of the development of human society and were codified in groups, especially in later stages, and it was applied in an organized manner within the framework of what was termed: “the contemporary State.”

 

Stages of the emergence of a legal rule:

The law appeared with the emergence of man. There is no doubt that the form in which it emerged in the first time has continued its development through the following four stages:

1-The stage of individual revenge or private justice:

Some jurists state that man in ancient times relied on force to collect his food and control others, as force was what established and protected rights.

By private judiciary, we mean that a person used to judge for himself, or lived in small groups independent of other groups, usually under the rule of the tribe’s leader, who had absolute authority, and he was the one who imposed punishment on the aggressor individual or his family, and after that the punishment became imposed by the group in agreement between them;

Characteristics of the stage of individual revenge or private justice:

-Humans lived in small groups separated from other groups.

-There was solidarity among the group members in confronting other groups in order to defend themselves;

-The force that created the right and was the one that protected it. Therefore, preserving economic and social rights was one of the difficult challenges that the individual had to rise to;

-Relations within the group are based on subordination and submission to the head of the tribe or clan, who has absolute authority over it and supervises its religious rituals;

-Punishment was based mainly on individual revenge and the use of force, and the assaulted individual was the one who decided to impose the penalty on the aggressor himself or through his family or friends.

2-The stage of religious traditions:

This stage is represented by the set of beliefs that its owners believe in, whether these beliefs are from the revelation brought by the prophets and messengers, or what people have inherited in terms of rituals, whether those that are attributed to natural forces, idols, or kings...etc. The religions followed, whether divine or man-made, have had a significant impact on society and the law that governs it.

Characteristics of the stage of religious traditions:

-At this stage, man worshiped different gods, such as natural phenomena, animals, and others whose wrath he feared.

-Each group had its own gods.

-The head of the group was in charge of religious rituals. Religious rituals are characterized by their multiplicity and difficulty for the average person to understand. Therefore, a special category of individuals undertakes these rituals, namely “clerics.”;

-When the groups merged into the State system, the head of State inherited the religious powers that the heads of the groups enjoyed;

-During this stage, some religious rules were formed with binding force, which led to a decrease in cases of resorting to individual revenge;

-The law was the source of divine revelation, and the legal rules were embodied in a number of religious traditions, the violation of which led to the imposition of a religious penalty represented by the fear of the wrath of the gods.

 

 

 

3-The stage of customary traditions:

With the development of man and the emergence of progress in the economic, political and intellectual aspects, custom began to emerge and members of society depended on it. With the separation of the latter from religion, customary rules and traditions were dissolved, and after that democratic rule appeared, that is, majority rule, and rulings began to be issued in the name of the people.

Characteristics of the customary tradition stage:

-The stage was characterized by the development of society in the economic, political and intellectual fields;

-Repel the behavior of individuals to follow habits that have persisted for a long time until they have become obligatory;

-Administrative division replaced tribal organization;

-The chaos that had prevailed in the previous stages declined, and the noble class strengthened and entered into a struggle with the clergy in order to seize power. This struggle ended with the separation of political power from religious power.

-In the field of the government system, democratic rule based on elections prevailed, and the ruler rules in the name of the majority and not in the name of a specific class in society, which led to the establishment of equality in society.

-The legal rule is no longer limited to a specific group of individuals in society, and it no longer comes from divine revelation, but rather issues from the will of the people, and has become subject to modification according to the circumstances prevailing in society.

-In the field of punishment, it is embodied in civil penalties applied by the civil authority, after they were previously imposed by the religious authority.

4-The writing stage:

When man invented writing, societies began to write down their laws and disseminate them among the people so that they could bind them to them and punish those who violated them. These were either in the form of legal codes issued by the legislator, or in the form of customary records issued by specialized individuals. Customs, judicial rulings, and rulers’ orders were written down as they spread among the people. The codification of laws is due to the following reasons:

A- Multiple judges in one society:

Countries began to expand and spread due to the large number of people, and it was necessary to allocate a number of judges authorized to adjudicate disputes that arise between people in different regions, due to the impossibility of one person being alone in the task of judiciary, and the reason for codifying the law is due to the necessity of unifying the law that judges apply to all citizens in a specific territory;

B- Preserving legal rules from disappearing and changing:

Before the advent of writing laws or codification, societies relied on the memory of the elderly to memorize legal codes and customary rules, and with the presence of the means of writing, the process of memorizing the various legal texts in effect across different eras was facilitated.

C- Spreading and disseminating the law in society:

Codifying or writing the law is due to its dissemination and dissemination of its provisions among members of society, making them bound by it, unifying its application, and preventing disagreement in its interpretation according to personal whims and opinions, and this is what imposes its respect and ensures its survival.